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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
File Number: EB-07-IH-8320
WSKQ Licensing, Inc. )
NAL/Acct. No.: 201032080016
Licensee of Station WSKQ-FM )
FRN #: 0004976882
New York, New York )
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 4, 2010 Released: February 4, 2010
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we assess
a monetary forfeiture in the amount of $16,000 against WSKQ Licensing,
Inc. ("WSKQ Licensing" or the "Licensee"), licensee of WSKQ-FM, New
York, New York, for its apparent willful and repeated violation of
Section 73.1206 of the Commission's Rules. As discussed below, we find
that WSKQ Licensing apparently violated the telephone broadcast rule
by broadcasting a telephone conversation without giving prior notice
to the individual being called of its intention to do so.
II. BACKGROUND
2. The Enforcement Bureau ("Bureau") received a complaint (the
"Complaint") alleging that on August 23, 2007, a Station employee made
a call to a woman (the "Call Recipient") claiming to be an employee of
a local hospital and told her that her husband had been seriously
injured in a motorcycle accident and that he died at the hospital. The
Complaint also alleges that the Call Recipient became distraught when
she received this information. Thereafter, the Station employee
informed her that the call was a "joke."
3. The Bureau issued a letter of inquiry ("LOI") to WSKQ Licensing on
September 25, 2008, regarding the complaint at issue. In its LOI
Response ("Response"), WSKQ Licensing states that its parent company,
Spanish Broadcasting System, Inc., contracted with a vendor, "Rubin
Ithier," who recorded the call for a prank call feature show. The
Licensee admits that Ithier initiated the call broadcast by the
Station, that the call was made at the call recipient's husband's
request, and that Ithier performed the prank. In its LOI Response, the
Licensee further admits that Mr. Ithier did not inform the call
recipient that the call was being recorded for later broadcast until
after the call had been recorded and played over the air. The licensee
provided a transcript of the program, the content of which confirms
that the call recipient was not given notice prior to the call being
recorded that it was being recorded for future broadcast. The Licensee
admits that the Station broadcast the call twice on August 23, 2007.
4. The Licensee included a recording and transcript of the broadcast of
the call which included, in pertinent part, the following:
Mr. Ithier: Can I speak with Ms. Juliana please?
Call Recipient: Who is this?
Mr. Ithier: The Doctor Raymond Martinez, I'm just calling from [bleeped
out]
Hospital
Call Recipient: Aha? Yes Juliana
Mr. Ithier: Do you know anybody with the name Luis, Luis Miguel?
Call Recipient: Yes
* * * * *
Mr. Ithier: OK, this person had an accident in mid afternoon.
Call Recipient: OK
Mr. Ithier: on a motorcycle.
Call Recipient: How is he? How is he?
Mr. Ithier: He cannot move his hands, he can't move his arms, he suffered
because
he was not wearing his helmet. He suffered, a, a on his neck.
Call Recipient: Aha
Mr. Ithier: And, he can't yet but the problem is that we need a blood
transfusion.
Call Recipient: A blood transfusion?
Mr. Ithier: Yes, he needs blood because it is possible that he might even
loose his
sight, he is not a complete vegetable but we need a blood transfusion.
Call Recipient: Oh my God! OK, OK. Uhmm! Who am I speaking to?
Mr. Ithier: Raymond Martinez.
* * * * *
[The Call Recipient hands over the phone to a friend who proceeds to ask
Mr. Ithier additional questions.]
Mr. Ithier: Right now he is on the operation table, because, on his neck
he suffered a fracture, very serious.
Call Recipient's Friend: OK, but he is stable?
Mr. Ithier: No, I don't think so. I don't think he'll make it. I don't
think he'll make
it. Can I speak with Julian, Juliana please? I feel like you, you are
interrogating me or something like that.
Call Recipient's Friend: No, it's that she is not well and doesn't know
how to explain what they
told her about Luis. That's why I wanted to call.
Mr. Ithier: Give me a second, give me a second, here comes the doctor, one
minute,
hold on one second. Yeah doctor, what happened? On no, do I have to
say that? No, no, no, ay.
Call Recipient's Friend: Yeah?
Mr. Ithier: Oh my God! He died. I'm so sorry. Too late!
Call Recipient's Friend: Excuse me?
Mr. Ithier: He died, he died already. That's what the doctor just told me
now. So if
you want to stop by here to pick up or identify the body or something.
Hello?
Call Recipient: (can be heard crying in the background)
* * * * *
[Call Recipient's Friend then hands over the phone to the Call Recipient]
Call Recipient: Hello?
Mr. Ithier: Juliana, oh, oh I'm so sorry he just died right now.
Call Recipient: (crying)
Mr. Ithier: I will, Juliana I want to ask you something. Just two or three
questions
please. I can't hear you.
Call Recipient: What?
Mr. Ithier: So this is for when you come here you don't have to ask too
many
questions when you identify him.
Call Recipient: No, no, I'm going over there right now.
Mr. Ithier: OK, ah, Juliana?
Call Recipient: Yes
Mr. Ithier: OK, you listen to El Vacilon de la Manana?
(Ithier's cohort): Ayh No!
Call Recipient: Yes
Mr. Ithier: Well this was a joke mami. He is alive and kicking.
Call Recipient: Your [bleeped out] kidding me! (and then hangs up)
Mr. Ithier: Hello? Why are people always hanging up on me?
The Transcript indicates that the Call Recipient hung up the phone when
she learned that the call was a prank, and that Mr. Ithier telephoned her
again to obtain her permission to broadcast the call.
III. DISCUSSION
5. Under Section 503(b)(1) of the Act, any person who is determined by
the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any rule, regulation, or order issued by
the Commission shall be liable to the United States for a forfeiture
penalty. Section 312(f)(1) of the Act defines willful as "the
conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. "Repeated" means that the act was
committed or omitted more than once, or lasts more than one day. In
order to impose such a penalty, the Commission must issue a notice of
apparent liability, the notice must be received, and the person
against whom the notice has been issued must have an opportunity to
show, in writing, why no such penalty should be imposed. The
Commission will then issue a forfeiture if it finds, by a
preponderance of the evidence, that the person has willfully or
repeatedly violated the Act or a Commission rule. As described in
greater detail below, we conclude under this procedure that WSKQ
Licensing is apparently liable for a forfeiture in the amount of
$16,000 for its apparent willful and repeated violation of Section
73.1206.
6. Section 73.1206 of the Commission's Rules requires that, before
broadcasting or recording a telephone conversation for later
broadcast, a licensee must inform any party to the call of its
intention to broadcast the conversation, except where such party is
aware, or may be presumed to be aware from the circumstances of the
conversation, that it is being or likely will be broadcast. The
Commission will presume such awareness only where "the other party to
the call is associated with the station (such as an employee or
part-time reporter), or where the other party originates the call and
it is obvious that it is in connection with a program in which the
station customarily broadcasts telephone conversations."
7. Section 73.1206 reflects the Commission's longstanding policy that
prior notification is essential to protect individuals' legitimate
expectation of privacy and to preserve their dignity by avoiding
nonconsensual broadcasts of their conversations. The Commission
specifically favored an individual's privacy interest when balancing
it against a broadcaster's interest in enhancing program appeal with
increased spontaneity and entertainment value using telephone
conversations. The Commission found that such enhancement was not
sufficiently critical as to justify intruding on individual privacy.
The Commission has held that the prior notification requirement
ensures the protection of an individual's "right to answer the
telephone without having [his or her] voice or statements transmitted
to the public by a broadcast station" live or by recording for delayed
airing. Consistent with this reasoning, the Commission has defined
"conversations" broadly "to include any word or words spoken during
the telephone call," and specifically has rejected arguments that
"utterances made by parties called in answering the phone" are not
subject to the rule's prior notification requirement. Thus, aside
from the narrowly-tailored exceptions noted above, neither of which is
applicable here, before any portion of a telephone conversation is
recorded for later broadcast or before any portion of a telephone
conversation is initiated for simultaneous broadcast, the licensee
must inform the other party that the conversation will be recorded for
broadcast purposes or will be broadcast live.
8. As the record reflects, WSKQ Licensing failed to comply with the
notice requirement required by Section 73.1206. WSKQ Licensing asserts
that its independent contractor obtained the call recipient's
permission to broadcast the call before the Station broadcast it, but
acknowledges that such permission was requested after the telephone
conversation had been recorded. The failure to inform the call
recipient prior to recording the call that it was intended for
broadcast is a violation of Section 73.1206. Here the transcript and
the Licensee's admissions establish that the independent contractor,
based on its contract with the Licensee and without prior notice to
the call recipient, proceeded to record the conversation with the
recipient. This is the type of behavior - entertainment at the expense
of an individual's right to privacy - that Section 73.1206 was enacted
to sanction.
9. We further find - contrary to WSKQ Licensing's contention - that the
call's origination and recording by an independent contractor, rather
than the Licensee itself, does not exculpate the Licensee from
liability. The "Commission has long held that licensees and other
Commission regulatees are responsible for the acts and omissions of
their employees and independent contractors," and the Commission has
"consistently refused to excuse licensees from forfeiture penalties
where actions of employees or independent contractors have resulted in
violations." Nothing in the record here suggests that this precedent
does not or should not apply. Rather, the independent contractor had a
contract to provide prank call feature programming, suggesting that
the independent contractor was acting pursuant to a regular and
ongoing agreement condoning the type of practice for which we find the
Licensee apparently liable here. For the foregoing reasons, we find
that the Licensee apparently willfully and repeatedly violated Section
73.1206.
10. The Commission's forfeiture guidelines establish a base forfeiture
amount of $4,000 for the unauthorized broadcast of a telephone
conversation. In addition, the Commission's rules provide that base
forfeitures may be adjusted based upon consideration of the factors
enumerated in Section 503(b)(2)(E) of the Act and Section 1.80(a)(4)
of the Commission's rules, which include "the nature, circumstances,
extent, and gravity of the violation . . . and the degree of
culpability, any history of prior offenses, ability to pay, and such
other matters as justice may require." In another case involving the
same licensee, we proposed a $16,000 forfeiture for very similar
conduct. The events underlying that proceeding occurred
contemporaneously with the events in this case. Given those facts, and
given that we issued our earlier NAL well after the events of this
case, we find that $16,000 is also an appropriate forfeiture here.
Accordingly, having considered the record in this case and the
statutory factors identified above, we find that WSKQ Licensing is
apparently liable for a forfeiture in the amount of $16,000. Although
we exercise discretion in this instance in not imposing a higher
forfeiture, we warn the Licensee that future violations of this nature
may result in harsher enforcement action, including license revocation
proceedings.
IV. ORDERING CLAUSES
11. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's rules, that WSKQ Licensing, Inc. is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of sixteen thousand dollars ($16,000) for apparently willfully
and repeatedly violating Section 73.1206 of the Commission's rules.
12. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules, that within thirty (30) days of the release date of this NAL,
WSKQ Licensing, Inc., SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
13. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. WSKQ Licensing, Inc. will also send
electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, Anjali.Singh@fcc.gov
and Judy.Lancaster@fcc.gov.
14. The response, if any, shall be mailed to Hillary S. DeNigro, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 4-C330,
Washington D.C. 20554, and MUST INCLUDE the NAL/Account Number
referenced above. To the extent practicable, any response should also
be sent by e-mail to Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov,
Anjali.Singh@fcc.gov and Judy.Lancaster@fcc.gov.
15. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the respondent submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the respondent's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
16. IT IS FURTHER ORDERED, that the Complaint filed IS GRANTED to the
extent indicated herein and IS OTHERWISE DENIED, and the Complaint
proceeding IS HEREBY TERMINATED.
17. IT IS FURTHER ORDERED, that a copy of this NAL shall be sent, by
Certified Mail/Return Receipt Requested, to WSKQ Licensing, Inc. at
its address of record and to its counsel, Bruce A. Eisen, Kaye Scholer
LLP, 901 Fifteenth Street, N.W., Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Enforcement Bureau
See 47 C.F.R. S: 73.1206 (the "telephone broadcast rule").
See Complaint to Federal Communications Commission, dated August 23, 2007
("Complaint"). Because the complainant has not authorized disclosure, the
complainant's identity will remain anonymous.
See Complaint at 1. See paragraph 4, infra (excerpt of transcript of prank
call).
Id.
See Letter from Rebecca Hirselj, Assistant Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission
to WSKQ Licensing, Inc., dated September 25, 2008 ("LOI").
See Letter from Bruce A. Eisen, counsel for WSKQ Licensing, In., to
Marlene Dortch, Secretary, Federal Communications Commission, dated
October 27, 2008 ("LOI Response").
See id. at 1-2 & Translation at 4-5.
See id. at 3, Declaration at 1 & Translation at 6.
See id.
See id. at 4.
See id. at Translation of the August 23, 2007 call. A transcript in
Spanish and an English Translation were provided.
See id.
See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991).
See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10
(2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388 P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362 P: 9.
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 P: 4 (2002) (forfeiture paid).
See 47 C.F.R. S: 73.1206.
Id.
See Amendment of Section 1206: Broadcast of Telephone Conversations,
Report and Order, 3 FCC Rcd 5461, 5463-64 (1988) ("1988 Order re the
Broadcast of Telephone Conversations"); Station-Initiated Telephone Calls
Which Fail to Comply With Section 73.1206 of the Rules, Public Notice, 35
FCC 2d 940, 941 (1972); Amendment of Part 73 of the Commission's Rules and
Regulations with Respect to the Broadcast of Telephone Conversations,
Report and Order, 23 FCC 2d 1, 2 (1970); see also WXDJ Licensing, Inc.,
Forfeiture Order, 19 FCC Rcd 22445 (Enf. Bur. 2004) (assessing a
forfeiture for failure to obtain consent before recording telephone
conversation for broadcast; forfeiture paid).
See 1988 Order re the Broadcast of Telephone Conversations, 3 FCC Rcd at
5464.
See id. at 5463.
See Heftel Broadcasting-Contemporary, Inc., 52 FCC 2d 1005, 1006 (1975)
(holding that "conversation" was defined for the purpose of Section
73.1206 as including any word or words spoken during the telephone call
and imposing $2,000 forfeiture for failure to provide notice and obtain
consent prior to recording any conversation).
See LOI Response at 3-4.
See supra paragraph 4.
See supra note 26.
See KOFI, Inc., Forfeiture Order, 20 FCC Rcd 17886, 17888 (Enf. Bur.,
Investigations & Hearings Div. 2005) (holding that liability on employee
or independent contractor's part does not excuse licensee from liability
for violating telephone broadcast rule and assessing $4,000 forfeiture;
forfeiture paid).
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863-864 (2002). Accord MTD, Inc., Memorandum Opinion and Order, 6
FCC Rcd 34 (1991) (holding that a company's reliance on an independent
contractor to construct a tower in compliance with FCC rules does not
excuse that company from a forfeiture); Wagenvoord Broadcasting Co.,
Memorandum Opinion and Order, 35 FCC 2d 361 (1972) (holding a licensee
responsible for violations of FCC rules despite its reliance on a
consulting engineer); Petracom of Joplin, L.L.C., Forfeiture Order, 19 FCC
Rcd 6248 (Enf. Bur. 2004) (holding a licensee liable for its employee's
failure to conduct weekly EAS tests and to maintain the "issues/programs"
list).
American Paging, Inc. of Virginia, Notice of Apparent Liability for
Forfeiture, 12 FCC Rcd 10417, 10420 (WTB 1997) (quoting Triad Broadcasting
Company, Inc., 96 FCC 2d 1235, 1244 (1984)).
See LOI Response at 2-3.
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087, 17115 (1997), recons. denied, 15 FCC Rcd 303
(1999) ("Forfeiture Policy Statement"); 47 C.F.R. S:1.80.
See 47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.80(a)(4).
See WSKQ Licensing, Inc., Notice of Apparent Liability for Forfeiture, 23
FCC Rcd 14933 (Enf. Bur., Investigations & Hearings Div. 2008) (imposing a
$16,000 forfeiture against the Licensee for violation of the telephone
broadcast rule) (forfeiture paid). See also WXDJ Licensing, Inc., Notice
of Apparent Liability, 19 FCC Rcd at 22447 (imposing a $3,500 forfeiture
against the Licensee for violating telephone broadcast rule) (forfeiture
paid); WCMQ Licensing, Inc., Notice of Apparent Liability, 15 FCC Rcd 8111
(Enf. Bur. 2000) (forfeiture paid).
The conduct at issue in the WSKQ NAL occurred 35 days before the conduct
at issue here. See Complaint to Federal Communications Commission, dated
July 19, 2007 (EB-07-IH-8469); WSKQ Licensing, Inc., Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 14933 (Investigations and Hearings
Div. 2008) (EB-07-IH-8469); Complaint to Federal Communications
Commission, dated August 23, 2007 (EB-07-IH-8320).
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1206.
See 47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80,
73.1206.
For purposes of this forfeiture proceeding initiated by this NAL, WSKQ
Licensing, Inc. shall be the only party to this proceeding.
(Continued from previous page)
(Footnote Continued...)
Federal Communications Commission DA 10-234
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Federal Communications Commission DA 10-234